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  By: Huffman, et al. S.B. No. 212
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to a reporting requirement for certain incidents of sexual
  harassment, sexual assault, dating violence, or stalking at certain
  public and private institutions of higher education; creating a
  criminal offense; authorizing administrative penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 51, Education Code, is amended by adding
  Subchapter E-2 to read as follows:
  SUBCHAPTER E-2.  REPORTING INCIDENTS OF SEXUAL HARASSMENT, SEXUAL
  ASSAULT, DATING VIOLENCE, AND STALKING
         Sec. 51.251.  DEFINITIONS. In this subchapter:
               (1)  "Coordinating board" means the Texas Higher
  Education Coordinating Board.
               (2)  "Dating violence," "sexual assault," and
  "stalking" mean dating violence, sexual assault, or stalking, as
  applicable, that an institution of higher education is required to
  report under the Jeanne Clery Disclosure of Campus Security Policy
  and Campus Crime Statistics Act (20 U.S.C. Section 1092(f)).
               (3)  "Employee of a postsecondary educational
  institution" does not include a student enrolled at the
  institution.
               (4)  "Postsecondary educational institution" means an
  institution of higher education or a private or independent
  institution of higher education, as those terms are defined by
  Section 61.003.
               (5)  "Sexual harassment" means unwelcome, sex-based
  verbal or physical conduct that:
                     (A)  in the employment context, unreasonably
  interferes with a person's work performance or creates an
  intimidating, hostile, or offensive work environment; or
                     (B)  in the education context, is sufficiently
  severe, persistent, or pervasive that the conduct interferes with a
  student's ability to participate in or benefit from educational
  programs or activities at a postsecondary educational institution.
         Sec. 51.252.  REPORTING REQUIRED FOR CERTAIN INCIDENTS.  
  (a)  An employee of a postsecondary educational institution who, in
  the course and scope of employment, witnesses or receives
  information regarding the occurrence of an incident that the
  employee reasonably believes constitutes sexual harassment, sexual
  assault, dating violence, or stalking and is alleged to have been
  committed by or against a person who was a student enrolled at or an
  employee of the institution at the time of the incident shall
  promptly report the incident to the institution's Title IX
  coordinator or deputy Title IX coordinator.
         (b)  Except as provided by Subsection (c), the report must
  include all information concerning the incident known to the
  reporting person that is relevant to the investigation and, if
  applicable, redress of the incident, including whether an alleged
  victim has expressed a desire for confidentiality in reporting the
  incident.
         (c)  An employee of a postsecondary educational institution
  designated by the institution as a person with whom students may
  speak confidentially concerning sexual harassment, sexual assault,
  dating violence, or stalking or who receives information regarding
  such an incident under circumstances that render the employee's
  communications confidential or privileged under other law shall, in
  making a report under this section, state only the type of incident
  reported and may not include any information that would violate a
  student's expectation of privacy.  This subsection does not affect
  the employee's duty to report an incident under any other law.
         (d)  Notwithstanding Subsection (a), a person is not
  required to make a report under this section concerning:
               (1)  an incident in which the person was a victim of
  sexual harassment, sexual assault, dating violence, or stalking; or
               (2)  an incident of which the person received
  information due to a disclosure made at a sexual harassment, sexual
  assault, dating violence, or stalking public awareness event
  sponsored by a postsecondary educational institution or by a
  student organization affiliated with the institution.
         Sec. 51.253.  ADMINISTRATIVE REPORTING REQUIREMENTS.
  (a)  Not less than once every three months, the Title IX
  coordinator of a postsecondary educational institution shall
  submit to the institution's chief executive officer a written
  report on the reports received under Section 51.252, including
  information regarding:
               (1)  the investigation of those reports;
               (2)  the disposition, if any, of any disciplinary
  processes arising from those reports; and
               (3)  the reports for which the institution determined
  not to initiate a disciplinary process, if any.
         (b)  The Title IX coordinator or deputy Title IX coordinator
  of a postsecondary educational institution shall immediately
  report to the institution's chief executive officer an incident
  reported to the coordinator under Section 51.252 if the coordinator
  has cause to believe that the safety of any person is in imminent
  danger as a result of the incident.
         (c)  Subject to Subsection (d), at least once during each
  fall or spring semester, the chief executive officer of a
  postsecondary educational institution shall submit to the
  institution's governing body and post on the institution's Internet
  website a report concerning the reports received under Section
  51.252.  The report:
               (1)  may not identify any person; and
               (2)  must include:
                     (A)  the number of reports received under Section
  51.252;
                     (B)  the number of investigations conducted as a
  result of those reports;
                     (C)  the disposition, if any, of any disciplinary
  processes arising from those reports;
                     (D)  the number of those reports for which the
  institution determined not to initiate a disciplinary process, if
  any; and
                     (E)  any disciplinary actions taken under Section
  51.255.
         (d)  If for any semester a postsecondary educational
  institution has fewer than 1,500 enrolled students, the chief
  executive officer of the institution shall submit and post a report
  required under Subsection (c) for that semester only if more than
  five reports were received under Section 51.252 during that
  semester.
         Sec. 51.254.  IMMUNITIES.  (a)  A person acting in good
  faith who reports or assists in the investigation of a report of an
  incident described by Section 51.252(a) or who testifies or
  otherwise participates in a disciplinary process or judicial
  proceeding arising from a report of such an incident:
               (1)  is immune from civil liability, and from criminal
  liability for offenses punishable by fine only, that might
  otherwise be incurred or imposed as a result of those actions; and
               (2)  may not be subjected to any disciplinary action by
  the postsecondary educational institution at which the person is
  enrolled or employed for any violation by the person of the
  institution's code of conduct reasonably related to the incident
  for which suspension or expulsion from the institution is not a
  possible punishment.
         (b)  Subsection (a) does not apply to a person who
  perpetrates or assists in the perpetration of the incident reported
  under Section 51.252.
         Sec. 51.255.  FAILURE TO REPORT OR FALSE REPORT; OFFENSES.  
  (a)  A person commits an offense if the person:
               (1)  is required to make a report under Section 51.252
  and knowingly fails to make the report; or
               (2)  with the intent to harm or deceive, knowingly
  makes a report under Section 51.252 that is false.
         (b)  An offense under Subsection (a) is a Class B
  misdemeanor, except that the offense is a Class A misdemeanor if it
  is shown on the trial of the offense that the actor intended to
  conceal the incident that the actor was required to report under
  Section 51.252.
         (c)  A postsecondary educational institution shall terminate
  the employment of an employee whom the institution determines in
  accordance with the institution's disciplinary procedure to have
  committed an offense under Subsection (a).
         Sec. 51.256.  CONFIDENTIALITY.  (a)  Unless waived in
  writing by the alleged victim, the identity of an alleged victim of
  an incident reported under Section 51.252:
               (1)  is confidential and not subject to disclosure
  under Chapter 552, Government Code; and
               (2)  may be disclosed only to:
                     (A)  persons employed by or under contract with
  the postsecondary educational institution to which the report is
  made who are necessary to conduct an investigation of the report or
  any related hearings;
                     (B)  a law enforcement officer as necessary to
  conduct a criminal investigation of the report;
                     (C)  the person or persons alleged to have
  perpetrated the incident, to the extent required by other law; or
                     (D)  potential witnesses to the incident as
  necessary to conduct an investigation of the report.
         (b)  A disclosure under Subsection (a) is not a voluntary
  disclosure for purposes of Section 552.007, Government Code.
         (c)  Nothing in this section may be construed as prohibiting
  a victim from making a report to a law enforcement agency using the
  pseudonym form described by Article 57.02, Code of Criminal
  Procedure.
         Sec. 51.257.  RETALIATION PROHIBITED. (a)  A postsecondary
  educational institution may not discipline or otherwise
  discriminate against an employee who in good faith:
               (1)  makes a report as required by Section 51.252; or
               (2)  cooperates with an investigation, a disciplinary
  process, or a judicial proceeding relating to a report made by the
  employee as required by Section 51.252.
         (b)  Subsection (a) does not apply to an employee who:
               (1)  reports an incident described by Section 51.252(a)
  perpetrated by the employee; or
               (2)  cooperates with an investigation, a disciplinary
  process, or a judicial proceeding relating to an allegation that
  the employee perpetrated an incident described by Section
  51.252(a).
         Sec. 51.258.  COMPLIANCE. (a)  The chief executive officer
  of each postsecondary educational institution shall annually
  certify in writing to the coordinating board that the institution
  is in substantial compliance with this subchapter.
         (b)  If the coordinating board determines that a
  postsecondary educational institution is not in substantial
  compliance with this subchapter, the coordinating board may assess
  an administrative penalty against the institution in an amount not
  to exceed $2 million.  In determining the amount of the penalty, the
  coordinating board shall consider the nature of the violation and
  the number of students enrolled at the institution.
         (c)  If the coordinating board assesses an administrative
  penalty against a postsecondary educational institution under
  Subsection (b), the coordinating board shall provide to the
  institution written notice of the coordinating board's reasons for
  assessing the penalty.
         (d)  A postsecondary educational institution assessed an
  administrative penalty under Subsection (b) may appeal the penalty
  in the manner provided by Chapter 2001, Government Code.
         (e)  A postsecondary educational institution may not pay an
  administrative penalty assessed under Subsection (b) using state or
  federal money.
         (f)  An administrative penalty collected under this section
  shall be deposited to the credit of the sexual assault program fund
  established under Section 420.008, Government Code.
         (g)  The coordinating board shall annually submit to the
  governor, the lieutenant governor, the speaker of the house of
  representatives, and the standing legislative committees with
  primary jurisdiction over legislation concerning sexual assault at
  postsecondary educational institutions a report regarding
  compliance with this subchapter, including a summary of the
  postsecondary educational institutions found not to be in
  substantial compliance as provided by this section and any
  penalties assessed under this section during the calendar year
  preceding the date of the report.
         Sec. 51.259.  RULES. The coordinating board shall adopt
  rules as necessary to implement and enforce this subchapter,
  including rules that ensure implementation of this subchapter in a
  manner that complies with federal law regarding confidentiality of
  student educational information, including the Family Educational
  Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).  In
  adopting those rules, the coordinating board shall use the
  negotiated rulemaking procedures under Chapter 2008, Government
  Code, and consult with relevant stakeholders.
         Sec. 51.260.  TRAINING ADVISORY COMMITTEE.  (a)  The
  commissioner of higher education shall establish an advisory
  committee to develop recommended training for persons required to
  report certain incidents under Section 51.252 and for Title IX
  coordinators and deputy Title IX coordinators at postsecondary
  educational institutions.
         (b)  The advisory committee consists of nine members
  appointed by the commissioner of higher education as follows:
               (1)  eight members who are a chief executive officer of
  a postsecondary educational institution or a representative
  designated by that officer; and
               (2)  one member who is a representative of an advocacy
  organization for victims of sexual assault or family violence.
         (c)  Not later than December 1, 2019, the advisory committee
  shall develop the recommended training under Subsection (a).
         (d)  This section expires September 1, 2020.
         SECTION 2.  Section 61.0331, Education Code, is amended to
  read as follows:
         Sec. 61.0331.  NEGOTIATED RULEMAKING REQUIRED.  The board
  shall engage institutions of higher education in a negotiated
  rulemaking process as described by Chapter 2008, Government Code,
  when adopting a policy, procedure, or rule relating to:
               (1)  an admission policy regarding the common admission
  application under Section 51.762, a uniform admission policy under
  Section 51.807, graduate and professional admissions under Section
  51.843, or the transfer of credit under Section 61.827;
               (2)  the allocation or distribution of funds, including
  financial aid or other trusteed funds under Section 61.07761;
               (3)  the reevaluation of data requests under Section
  51.406; [or]
               (4)  compliance monitoring under Section 61.035; or
               (5)  the reporting of certain incidents of sexual
  harassment, sexual assault, dating violence, or stalking under
  Subchapter E-2, Chapter 51.
         SECTION 3.  Section 420.008(b), Government Code, is amended
  to read as follows:
         (b)  The fund consists of:
               (1)  fees collected under:
                     (A) [(1)]  Article 42A.653(a), Code of Criminal
  Procedure;
                     (B) [(2)]  Section 508.189, Government Code; and
                     (C) [(3)]  Subchapter B, Chapter 102, Business &
  Commerce Code, and deposited under Section 102.054 of that code;
  and
               (2)  administrative penalties collected under Section
  51.258, Education Code.
         SECTION 4.  Sections 51.251-51.259, Education Code, as added
  by this Act, and Section 61.0331, Education Code, as amended by this
  Act, apply beginning January 1, 2020.
         SECTION 5.  Not later than January 1, 2021, the Texas Higher
  Education Coordinating Board shall submit its initial report
  required under Section 51.258(g), Education Code, as added by this
  Act.
         SECTION 6.  (a)  Except as provided by Subsections (b) and
  (c) of this section, this Act takes effect September 1, 2019.
         (b)  Section 51.260, Education Code, as added by this Act,
  takes effect immediately if this Act receives a vote of two-thirds
  of all the members elected to each house, as provided by Section 39,
  Article III, Texas Constitution.  If this Act does not receive the
  vote necessary for immediate effect, Section 51.260, Education
  Code, as added by this Act, takes effect September 1, 2019.
         (c)  Section 51.255(a), Education Code, as added by this Act,
  takes effect January 1, 2020.